Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1133 OF 2001

Kanti Lal                             .....           Appellant

Versus

State of Rajasthan                     .....       Respondent

WITH

CRIMINAL APPEAL NO. 1134 OF 2001

Arvind Kumar                             .....           Appellant

Versus

State of Rajasthan                     .....       Respondent

J U D G M E N T

Lokeshwar Singh   Panta  , J.   

1] Both these appeals  arising out of a common judgment

and order dated 26.04.2001 passed by learned Single Judge of

the  High  Court  of  Judicature  for  Rajasthan  at  Jodhpur  in

S. B. Criminal Appeal No. 125 of 1997 [Arvind Kumar Vs. State

of  Rajasthan]  and  S.  B.  Criminal  Misc.  Petition  No.  202  of

1997 [Arvind Kumar [DW-2] Vs. State of Rajasthan], were taken

up and heard together  and shall  stand disposed  of  by  this

common judgment.   

2] By the impugned order, the High Court while dismissing

the  appeal  of  Arvind  Kumar  [A-1]  and  Kanti  Lal  [A-3]  and

confirming  their  conviction  and  sentence  under  Sections

304B and 498A of the Indian Penal Code, 1860 [for short the

“IPC”]  recorded  by  the  learned  Sessions  Judge,  Jalore,  in

Sessions Case No. 25 of 1993, has set aside the conviction of

Sanwal  Chand  [A-2],  Bhanwar  Lal  [A-4],  Chetan  Lal  [A-5],

Popat Lal [A-6] and Smt. Bagtu [A-7] and acquitted them of

the charged offences.  However, S. B. Criminal Misc. Petition

No.  202  of  1997  filed  by  Arvind  Kumar  Sengwa  –  Naib

Tehsildar [DW-2] under Section 482 of the Code of Criminal

Procedure, 1973 praying for expunging adverse observations

made by the learned Sessions Judge against him, Dr. Vasudev

[PW-11] and Shaitan Singh – Station House Officer [PW-12],

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contained  in  paragraph  40  of  the  judgment,  came  to  be

dismissed.

3] The  incident,  which  led  to  the  trial  of  the  accused,

occurred on 07.08.1992 at about 9.00 a.m. at Village-Silason,

District-Pali.  Parasmal [PW-5] – father of Smt. Laxmi lodged

written  report  [Ex.P-7]  to  Shaitan  Singh  [PW-12]  –  Station

House  Officer,  Police  Station  –  Raniwada,  District  –  Pali

alleging  inter alia that about three years prior to the day of

incident, his daughter Smt. Laxmi aged about 22 years was

married to Arvind Kumar [A-1] - son of Sanwal Chand [A-2],

resident of  Village Silason.  He averred that as per the custom

of the area, he had given 20 tolas of gold and other valuable

articles  to  his  daughter  at  the  time  of  her  marriage.   He

alleged that after the marriage, his daughter had lived a happy

and peaceful life in her parents-in-law’s house for about one

year, but soon thereafter whenever his daughter used to come

to his house or whenever he paid visits to the house of her

parents-in-laws, his daughter had made repeated complaints

to him in regard to ill-treatment and harassment meted out to

her  at  the  hands  of  the  accused  for  not  bringing  sufficient

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dowry.   He  alleged that about  two years after  her marriage

Smt. Laxmi became pregnant and as per the custom of the

area, she came to her parents’ house for delivery of the first

child and at that point of time his son-in-law (A-1) and his

son-in-law’s elder brother [A-3] had demanded loan amount of

Rs.50,000/-  from  him  for  starting  some  business,  which

amount he had paid to them. Smt. Laxmi was blessed with a

male child.  After the delivery of a child, Smt. Laxmi stayed in

his house for a period of about 3-4 months and thereafter she

along with her male child, went back to her parents-in-laws’

house.  

4] The complainant further alleged that he had gone to the

house of the parents-in-laws of his daughter to find out their

welfare, but at that point of time the accused told him that the

loan amount of Rs. 50,000/- borrowed by A-1 and A-3 from

him will be treated as dowry amount.  It was alleged that Smt.

Laxmi came to his house about two months prior to her death.

Bhanwar Lal (A-4),  elder brother of  A-1, came to his house

and asked him to send his daughter to her parents-in-laws’

house, but because of darkness in the evening, he declined to

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send her with an infant child with A-4.   He alleged that on the

same night at about 9:00 p.m. or 10:00 p.m. three accused,

namely A-3, A-4 and A-7, came to his house and banged the

door of his house.  On hearing the repeated sound of banging

of  the  door,  he  and  his  wife  Bhanvri  [PW-6]  immediately

opened  the  door  of  the  house  and  saw  A-3,  A-4  and  A-7

standing outside the house.  They without any reason started

quarelling with him and his wife and told them that the money

advanced by him to A-1 and A-3 shall be treated as amount of

dowry.  On hearing the shouting voices of A-3, A-4 and A-7 at

the  house  of  the  complainant,  one  Dayalal  Tagir  Chand

(PW-3),  Narayan  Chand  (PW-7)  and  some  more  neighbours

gathered there and on their intervention A-3, A-4 and A-7 had

gone back to their house.

5] It  was alleged that about  10 days prior  to the  date  of

incident, complainant along with Mahender Singh his brother–

in-law  and  Pratap  [PW-10],  an  acquaintance  of  the

complainant, went to the house of the parents-in-laws of his

daughter.   He went inside the house to meet  his daughter,

whereas  Mahender  Singh  and  PW–10  remained  sitting

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outside.   His  daughter  had  disclosed  to  him  that  all  the

accused  had  maltreated  and  harassed  her  for  not  bringing

adequate dowry.  He, in the presence of Mahender Singh and

PW–4, requested the accused persons that they unnecessarily

should not harass and maltreat his daughter but they paid no

heed  to  his  request.   It  was  also  stated  that  in  the  early

morning of the day of incident, one Mishrimal Soni and two

Rajputs came to his house and revealed that Smt. Laxmi had

been admitted to Raniwada Hospital as she was suffering from

stomach pain.    He  along  with  his  wife  PW–6  went  to  the

hospital where they saw their daughter lying on the bed with

burn wounds on her body.  He advised his wife to stay back by

the side of his daughter  and himself  went to his village  for

taking  the  help  of  his  brothers  and  relatives.   He  took  his

brother Angraj  and Jayantilal  and some more people  of  the

village  to  the  hospital,  where  they  were  informed  that  the

victim was being taken to Thonera for further treatment.  His

wife had also gone with her daughter.  After some time, a jeep

came there, carrying the dead body of Smt. Laxmi.  He was

told that Smt. Laxmi had died on the way.  On these premises,

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he lodged a complaint [Ext. P7] before Shaitan Singh (PW-12)

Station House Officer, Police Station Raniwada at about 8:00

or 9:00 p.m. on the same day.  On the basis of the complaint

(Ex. P7),  First  Information Report  bearing Case  No.  126/92

[Ex.  P8]  came  to  be  registered  at  Police  Station  Raniwada

against  the  accused  persons  for  offences  punishable  under

Sections 304B and 498A of IPC.

6] Dr. Vasudev (PW-11) Medical Officer posted at Raniwada

Hospital, on the request of the police, examined Smt. Laxmi at

about 5:45 a.m. on 07.08.1992 and noticed about 90% burn

wounds on her entire body starting from the top of the head

right  upto  her  feet.   He  prepared  injury  report  (Ext.  P-11).

According to the doctor’s report,  the wounds noticed on the

person of Smt. Laxmi appeared to be four hours old.  He took

thumb  impression  of  Smt.  Laxmi  on  the  injury  report

(Ext. P-11).   

7] PW Shaitan Singh, before the death of Smt. Laxmi, went

to Primary Health Centre, Raniwada, where she was admitted

in injured condition.  He requested PW Dr. Vasudev about the

condition  of  Smt.  Laxmi.   Dr.  Vasudev  opined  that  injured

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Smt. Laxmi was in a fit state of mind to make statement.  PW

Shaitan  Singh  called  Arvind  Kumar  Sengwa  [DW-2]  –  Naib

Tehsildar to the hospital,  who recorded dying declaration of

Smt.  Laxmi  [Ext.D/4]  in  the  presence  of  Dr.  Vasudev.   On

receipt  of  the  information  about  the  admission  of  injured

Smt.  Laxmi  in  hospital,  Raniwada,  Raghubir  Singh [PW-13]

C.O., Bhinmal, rushed to the hospital and found Smt. Laxmi

dead on account of 90 per cent burn injuries.  PW Shaitan

Singh prepared panchnama    [Ext.P-2] under the instructions

and supervision of  PW-13.   PW-13 before  handing over  the

dead body to PW-5 – father of the deceased got her dead body

examined from the Medical Board.  He inspected the spot of

the incident and prepared Site Map [Ext. P-12] in the presence

of Jalam Singh [PW-1], Shaitan Singh [PW-2] and Ook Singh

[PW-4].  On spot inspection, some burnt pieces of the bangles,

ash,  match-box containing  burnt  and unburnt sticks,  some

burnt  pieces  of  the  skin  attached  with  clothes  and  one

‘bhabka’  [a kerosene burning lamp which is being used by a

goldsmith for placing joints in making of gold ornaments] were

collected  from the spot.   The  Investigating Officer  seized all

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those  articles  and  sealed  them  in  a  parcel  which  was

deposited  with  the  In-charge  of  the  Police  Station.   He

recorded the statements of the witnesses.  He later on arrested

A-1, A-3  and A-6.  PW-13 conducted the investigation partly

and thereafter as per the order of the D.I.G. Range, Jodhpur,

PW-13 on 23.09.1992  handed  over  the  case  file  for  further

investigation to Mahender Kumar Govil  [PW-14] – Additional

Superintendent  of  Police,  Bikaner.   PW-14  recorded  the

statements of the material witnesses.  After the completion of

the investigation of the case, Station House Officer prepared

chargesheet against accused persons and filed the same in the

court of Judicial Magistrate under Sections 304B and 498A of

the IPC.  The Judicial Magistrate committed the case to the

Sessions Judge for trial.

8] The  accused  pleaded  not  guilty  to  the  charges  and

claimed  to  be  tried.   The  learned  Sessions  Judge,  Jalore,

charged  the  accused  for  offences  under  Sections  304B and

498A of the IPC.  The prosecution, in order to substantiate its

case,  examined  as  many  as  15  witnesses.   The  accused

persons in the statements recorded under Section 313 of the

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Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] denied

the  incriminating  evidence  appearing  against  them.   Smt.

Bagtu [A-7] pleaded that on the day of the incident she was ill.

The accused examined Doongarmal [DW-1] and Arvind Kumar

Sengwa [DW-2] – Naib Tehsildar, Raniwada, Yashpal [DW-3]

and Bhanwar Lal [A-4] in their defence.

9] On examination of  the oral  and documentary  evidence

produced on record, the learned Sessions Judge by his order

dated  24.02.1997  found  the  accused  guilty  of  the  offences

under Sections 304B and 498A of the IPC and sentenced them

to suffer  10 years’  rigorous imprisonment  for  offence  under

Section 304 B of the IPC and 3 years’ rigorous imprisonment

for an offence under Section 498 A of the IPC with a fine of Rs.

500/-  each  and  in  default  of  the  payment  of  fine,  each

accused has to undergo simple imprisonment for one month.

All  the  sentences  were  ordered  to  run  concurrently.   The

learned  Sessions  Judge  in  paragraph  40  of  the  judgment

directed higher officers of PW-11 Dr. Vasudev, PW-12 Shaitan

Singh  –  Station  House  Officer  and  DW-2  -   Arvind  Kumar

Sengwa –  Naib  Tehsildar  to take  disciplinary action against

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them  for  not  discharging  their  official  duties  properly  and

diligently.

10] Feeling aggrieved thereby and dissatisfied with the order

of conviction, the accused filed S. B. Criminal Appeal No. 125

of  1997,  whereas  Arvind  Kumar  Sengwa  [DW-2]  –  Naib

Tehsildar filed S. B. Criminal Misc. Petition No. 202 of 1997

praying  for  expunging  of  the  adverse  observations  made  in

paragraph 40 of the judgment.

11] The  High Court  dismissed  the  appeal  of  A-1  and A-3,

whereas the appeal of A-2, A-4, A-5, A-6 and A-7 was allowed

and their conviction and sentence imposed upon them by the

learned  Sessions  Judge,  Jalore,  has  been  set  aside.  The

Criminal Revision Petition filed by Arvind Kumar Sengwa [DW-

2] – Naib Tehsildar has been dismissed.  The order of the High

Court reads as under:

“[1] The  appeal  filed  by  the  accused  appellants no.1 Arvind kumar [Husband of the deceased] and no. 3 Kantilal [Jeth of deceased] is dismissed, after confirming  the  judgment  and  order  dated 24.02.1997 passed by the learned Sessions Judge, Jalore so far as they relate to them.

Since  accused  appellant  no.  3  Kantilal  [Jeth  of deceased]  is  on  bail,  he  shall  surrender  himself

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before  the  trial  court  immediately  and in case  he does  not  surrender,  the  trial  court  shall  take immediate  steps for arresting and sending him to jail to serve out the remaining period of sentences. [2] The  appeal  filed  by  the  accused  appellants no.2  Sanwal  Chand  [Father-in-law  of  deceased], no.4 Bhanwar Lal [Jeth of deceased], no. 5 Chetan Lal [Jeth of the deceased], no. 6 Popat Lal [Devar of the deceased] and no.7 Smt. Bagtu [Mother-in-law of the deceased]  is allowed and the judgment and order  dated  24.02.1997  passed  by  the  learned Sessions Judge, Jalore so far as they relate to them, are set aside and they are acquitted of the charges framed against them.  Since they are on bail they need  not  surrender  and  their  bail  bonds  stand discharged.

[3] The  criminal  misc.  petition  filed  by  the petitioner  Arvind  Kumar  Sengwa,  DW-2  is  also dismissed.”

12] Now, A-1 and A-3 have filed these two sets of appeals

challenging  the  correctness  and validity  of  the  order  of  the

High Court.

13] Ms.  Aishwarya  Bhati,  Advocate  appearing  on  behalf  of

A-1 and A-3, vehemently contended that the judgment of the

High Court confirming the order of conviction passed by the

trial court is erroneous in law. She contended that the High

Court and the trial court, both were not justified in rejecting

the  dying  declaration  [Ext.-D/4]  voluntarily  made  by  the

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deceased to DW-2, an Officer of the State Government, stating

clearly  therein  that on the  intervening night of  the  incident

she attempted to lit  the chimney with burning match-stick,

but  in  the  darkness  accidentally  kerosene  oil  fell  on  the

ground of the room, by which her orna [dupatta] caught fire

and  as  a  result  of  the  accidental  fire  she  received  burn

injuries.  She stated that the dying declaration [Ext.-D/4] was

made  by  the  deceased  to  DW-2 in  the  presence  of  PW Dr.

Vasudev who certified that she was in a fit state of mind to

make the statement.

14] She next contended that the prosecution case is wholly

false and fabricated.   According to the learned counsel,  the

fact  of  recording  of  dying  declaration  by  DW-2  has  been

corroborated  by  PW-12  –  the  Station  House  Officer,  who

deposed that at the time of recording of dying declaration of

Smt. Laxmi by DW-2, the complainant  [PW-5] and his wife

[PW-6]  both  parents  of  the  deceased  were  present  and  the

prosecution  deliberately  and  intentionally  concealed  the

production  of  dying  declaration  from  the  Court  and  also

withheld the examination of DW-2 – the Naib Tehsildar as a

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prosecution witness with clear intention to conceal true facts

of  accidental  burning of  the deceased.   She also contended

that  the  High  Court  has  wrongly  placed  reliance  on  the

evidence  of  PWs  5,  6  and  8  who  are  all  highly  interested

witnesses  being  close  relatives  of  the  deceased.    She  next

contended that the judgment of the trial court as affirmed by

the  High  Court  holding  A-1  and  A-3  guilty  of  the  charged

offences  are  both  based  upon  conjectures  and  surmises,

therefore,  not  sustainable.   She  lastly  contended  that  the

prosecution has not led cogent and credible evidence against

A-3 [Jeth of the deceased] beyond reasonable doubt who has

nothing to do with the offence and therefore, he is entitled for

benefit of doubt.  

15] Dr.  Manish  Singhvi,  AAG  appearing  on  behalf  of  the

State,  has canvassed  correctness  of  the views taken by  the

courts  below  in  the  judgments.   He  submitted  that  the

approach of the High Court in re-appreciating the evidence led

by  the  prosecution  cannot  be  found  faulty.   He  then

contended  that  the  evidence  of  the  eye-witnesses  PW-5

Parasmal  [father of the deceased],  PW-6 Bhanvri  [mother of

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the deceased] and PW-8 Mahender Kumar – Mama [Deceased’s

mother’s  brother]  is  concise,  cogent  and  satisfactory  for

holding A-1 and A-3 guilty of the charged offences.  He lastly

contended that the trial court and the High Court, both have

correctly appreciated and re-appreciated the entire evidence of

the material witnesses, and this Court shall not be obliged to

interfere with the concurrent findings of the facts arrived at by

the courts below.   

16] In order to appreciate the rival contentions of the learned

counsel for the parties, we have independently scrutinized the

evidence led by the prosecution and examined the judgment of

the High Court.

17] The dying declaration [Ext.-D/4] allegedly made by the

deceased to DW-2 – Naib Tehsildar has been found to be an

unreliable  document by the trial  court  and the said finding

has been affirmed by the High Court.  We think it appropriate

to reproduce the true translation of the contents of the alleged

dying declaration [Ext.-D/4] which read as under:

“That  on the  night,  there  was  darkness  and she took match-box to lit  the  chimney  and when she started to lit the chimney, kerosene oil fell on

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the  ground and it  caught hold fire,  by which her orna caught fire and, thereafter, her husband tried to  save  her  and  people  of  village  gathered  and thereafter, she was taken to hospital.”  

18] The dying declaration [Ext.-D/4] was stated to have been

thumb-marked by the deceased and duly signed by DW-2 and

A-3 and PW Dr.  Vasudev.   It  is the  evidence  of  DW-2 that

when he recorded the alleged statement of the deceased, her

mother PW-6 was present in the hospital, but she refused to

append  her  signature  or  thumb  impression  upon  the

document.   PW Dr.  Vasudev  has proved  on record  medical

report [Ext.- P/11] of the deceased and in his examination-in-

chief, he has not whispered a word in regard to recording of

the  dying  declaration  [Ext.-D/4]  by  DW-2.   In  cross-

examination,  Dr.  Vasudev  admitted  that  he  could  not

remember  whether  A-3  was  present  in  the  hospital  when

DW-2 recorded the alleged dying declaration [Ext.-D/4].  He

categorically stated that dying declaration was not recorded by

DW-2, but the said document was prepared by his Reader.  He

has  shown  his  ignorance  whether  DW-2  took  thumb-

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impression of the deceased once or two times on the alleged

dying declaration.

19] PW Shaitan  Singh –  Station  House  Officer  stated  that

Medical Officer had given to him in writing that Smt. Laxmi

before her death was in a fit condition to make statement and

therefore,  he  called  DW-2 for  recording  her  statement.   He

stated  that  he  was  not  present  in  the  room  when  DW-2

recorded  the  alleged  dying  declaration  [Ext.-D/4]  of  the

deceased.

20] It is the evidence of DW-2 Arvind Kumar Sengwa that on

07.08.1992 one constable came to him with a letter of request

and disclosed that one woman, namely, Laxmi was admitted

in the  hospital  and her  statement  was to  be  recorded.   He

rushed to the hospital  and made enquiry from Dr. Vasudev

about the fit condition of Smt. Laxmi.  Smt. Laxmi was found

in  a  fit  state  of  mind  to  give  statement  which he  correctly

recorded.   He  admitted  that  PW  Bhanvri  –  mother  of  the

deceased was present in the room and she refused to put her

signature  or  thumb-impression  on  the  statement  of  the

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deceased.   In  cross-examination DW-2 admits  the  following

material facts:  

“1] That  before  recording  the  statement  of  the deceased  Ex.  D/4,  Tehreer  was  given  to  him  in writing by the police and he took out the Tehreer from the pocket of his coat and carbon copy of it, was  produced  by  him  during  the  course  of  his examination and the same is marked as Ex.D/5.

2] That at the time of recording statement of the deceased Ex.D/4, PW-12 Shaitan Singh, SHO was not there.

3] That it is correct to say that before recording the statement of the deceased Ex.D/4, he did not take  certificate  from the  doctor  on the  point  that she was in a fit condition to give statement.

4] That  before  recording  statement  of  the deceased Ex.D/4, he asked the deceased how the fire took place and apart from this, he did not ask any question, but such type of formalities are not mentioned in Ex.D/4.

5] That it is also correct to say that at the time of recording statement Ex.D/4 of the deceased, he did not oust her mother PW-6 Bhanvri and PW-11 Dr. Vasudev.

6] That it is also correct to say that he did not have any experience how dying declaration should be recorded.

7] That it is also correct to say that there is no endorsement on Ex.D/4 of the fact that statement was read over to the deceased and she admitted it to  be  correct  one  and,  thereafter,  her  thumb-

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impressions were taken and for non-observing these formalities, he could not assign any reason.

8] That after recording statement of the deceased Ex.D/4,  he  took  signatures  of  her  Jeth  Kantilal, accused  appellant  no.  3,  who  was  sitting  at  that time in the Chamber of the doctor.

9] That  it  is  also  correct  to  say  that  dying declaration Ex.D/4 was not sealed on the spot and it was given open to SHO, PW-2 Shaitan Singh.

10] That  before  recording  the  statement  of  the deceased Ex.D/4, he did not ask the deceased how incident took place and what she was doing.

11] That  he  took  two  thumb-impressions  of deceased  and  causes  of  taking  two  thumb- impressions have been assigned in the statement, but Ex.D/4 does not bear such reasons.”        

21] It  is well-settled that one of the important tests of the

credibility  of  the  dying  declaration  is  that  the  person,  who

recorded it, must be satisfied that the deceased was in a fit

state  of  mind.   For  placing  implicit  reliance  on  dying

declaration, court must be satisfied that the deceased was in a

fit state of mind to narrate the correct facts of occurrence.  If

the capacity of the maker of the statement to narrate the facts

is  found  to  be  impaired,  such  dying  declaration  should  be

19

rejected,  as it is highly unsafe to place reliance on it.   The

dying  declaration  should  be  voluntary  and  should  not  be

prompted and physical as well as mental fitness of the maker

is to be proved by the prosecution.

22] In  the  present  case,  as  noticed  above  DW-2  has  not

taken  any  certificate  from  the  doctor  to  prove  that  the

deceased was in a fit state of mind to give statement nor he

has recorded any endorsement  to that effect  on the alleged

dying  declaration  [Ext.-D/4].   Another  factor  which impairs

the credibility of the alleged dying declaration [Ext.- D/4] and

belies  the  statement  of  DW-2  was  that,  according  to  Dr.

Vasudev, dying declaration was recorded by the Reader of the

Tehsildar and not by DW-2.  It is also proved on record that

DW-2 did  not  ask preliminary  questions  from the  deceased

before  the  dying  declaration  allegedly  made  by  her  was

recorded  and  this  fact  also  created  doubt  about  the

correctness and truthfulness of the dying declaration.  It  is

also  the  evidence  of  DW-2  that  after  recording  the  alleged

statement  of  the  deceased,  he  did  not  seal  the  dying

declaration and unsealed document was handed over to the

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Station House Officer.  DW-2 has not produced on record the

original copy of the ‘Tehreer’ submitted to him by a constable

requesting him to visit the hospital for recording the alleged

dying declaration of the deceased, and a carbon copy whereof

was  produced  by  him  during  his  cross-examination.   A

categorical  refusal  of  putting  her  signature  or  thumb-

impression  on  the  alleged  dying  declaration  [Ext.-D/4]  by

PW-6 – Bhanvri [mother of the deceased] would further go to

prove  that  the  alleged  dying  declaration  was  not  at  all

recorded  by  DW-2  in  the  room  of  the  hospital  where  the

deceased  was  lying  before  she  died.  The  above-stated  facts

and  circumstances  would  prove  that  the  alleged  dying

declaration, on which much reliance has been placed by the

defence,  cannot  be  said  to  be  an  admissible  and  reliable

document.  The fact that the alleged dying declaration [Ext.-

D/4] did not bear endorsement of DW-2 to the effect that it

was read over and explained to the deceased, also created a

doubt on its credibility and truthfulness.  The trial court as

well  as the  High Court  both have  concurrently  and,  in our

considered  view,  have  rightly  rejected  the  genuineness  and

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credibility of the alleged dying declaration to prove the defence

version that the deceased made the said statement to DW-2

and she died because of accidental death.  We agree with the

findings and reasoning of  the  courts  below that the alleged

dying declaration [Ext.-D/4] suffers from a number of basic

infirmities  and  such  dying  declaration  cannot  be  found

admissible and accepted as genuine document.  

23] Ms.  Aishwariya,  learned  counsel,  has  relied  upon  the

judgments of this Court in Gaffar Badshaha Pathan Vs. State

of Maharashtra [[2004] 10 SCC 589] to contend that it is one

thing for an accused to attack a dying declaration in a case

where  the  prosecution  seeks  to  rely  on a  dying declaration

against  an  accused  but  it  is  altogether  different  where  an

accused  relies  upon  a  dying  declaration  in  support  of  the

defence of accidental death.  In such case, the burden on the

accused is much lighter.  In the present case, according to the

learned  counsel,  A-1  and  A-3  have  established  beyond

reasonable  doubt  that  the  statement  of  the  deceased  was

recorded  by  DW-2  with  bona  fide intention  and  without

putting  any pressure  upon the deceased  and therefore,  the

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document  has  to  be  accepted  as  admissible  and  reliable

document to indicate that the deceased died due to accidental

fire.  We have gone through the above cited judgment.  In that

case,  this  Court  while  dealing  with  the  dying  declaration

produced on record held as under:

“It  is  one  thing for  an accused  to  attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it  is  altogether  different  where  an  accused  relies upon a dying declaration in support of the defence of accidental death.  The burden on the accused is much  lighter.   He  has  only  to  prove  reasonable probability.  The High Court erred in holding that the  recording  of  the  dying  declaration  and  story stated therein apparently  appears to be false  and concocted.  The fact whether the dying declaration is false and concocted has to be established by the prosecution.   It  is  not  for  the  accused  to  prove conclusively that the dying declaration was correct and the story therein was not concocted.”

24] In  Ghurphekan  and  Others  Vs.  State  of  Uttar  Pradesh

[[1972]  3 SCC 361],  this Court while  dealing with the case,

which  entirely  rested  on  dying  declaration  of  the  deceased

held as under:

“[i] A  dying  declaration  recorded  within  a  few hours  after  the  incident,  when  it  bore  the endorsement of the doctor,  that the victim was at that time in “proper sense”  to be able to give the

23

statement and where the evidence of the recording magistrate showed no flaw in taking it down, there is no reason to reject it.

[ii] Where  the  dying  declaration  had  two weaknesses, namely, it did not mention the name of one of the witnesses present at the spot and it did not account for the injuries on the persons of the attacking  party,  it  cannot  be  rejected  on  those omissions only, if otherwise it could be shown to be true  in  other  respects,  by  other  satisfactory evidence.

[iii] Where  the  circumstantial  evidence  negatived the alternative case set up by the defence and the investigating  officer’s  evidence  about  the  place  of incident, the medical officer’s evidence in support of the prosecution about the manner of the occurrence of  the  incident,  and  the  explanation  of  some witnesses  for  their  presence  at  the  spot,  are consistent  with  the  dying  statement  and  the circumstantial  evidence;  the  dying  declaration possess  acceptability  in  spite  of  any  weaknesses pointed out by the defence.”  

25] In Kans Raj Vs. State of Punjab and others [[2000] 5 SCC

207], this Court held that the statement of a person “as to any

of the circumstances which resulted in his death” must have

some close and proximate relation with the actual occurrence

and proximity would depend upon the circumstances of each

case  for  the  purpose  of  admissibility  of  such  statement  as

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dying declaration under  Section 32 [1]  of  the Evidence  Act,

1872.

26] In Kamalakar Nandram Bhavsar Vs. State of Maharashtra

[[2004] 10 SCC 192], this Court on scrutiny of the evidence on

record  found  that  the  victim of  dowry  death/bride  burning

had suffered burn injuries to the extent of 94-95 % could not

have made dying declaration as stated by the doctor during

the cross-examination that a dying declaration was made by

the  victim  when  she  was  in  hospital.   The  alleged  dying

declaration was admitted in evidence on behest of defence by

trial court supportive to the defence of the accused.  On the

facts  of  the  case,  this  Court  observed  that  source  of

production of dying declaration was neither mentioned in the

trial court’s judgment nor was there any evidence to prove the

said document.  In these circumstances, this Court held that

the High Court had rightly rejected the said dying declaration.

27] In the present case, as noticed in the earlier part of the

judgment A-1 and A-3 have not proved on record the source of

production  of  the  dying  declaration  by  DW-2  who  after

recording the statement of the deceased was duty bound to

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hand over the alleged dying declaration under a sealed cover

to the prosecuting agency.  In this case, the origin and source

of the alleged dying declaration produced by DW-2 at the time

of his examination as a defence witness is highly doubtful and

such document cannot be accepted as genuine and truthful

document in support of the defence of   A-1 and A-3.

28] In  State  [Delhi  Administration]  Vs.  Laxman  Kumar  and

Others and Indian Federation of  Women Lawyers and Others

Vs. Smt. Shakuntala and Others [[1985] 4 SCC 476], this Court

while dealing a case of bride burning on the basis of dying

declaration, held as follow:

“A  dying  declaration  enjoys  almost  a  sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at that stage  of  life  he  is  not  likely  to  make  a  false statement.  Ordinarily, a document as valuable as a dying declaration is supposed to be foolproof and is to incorporate the particulars which it is supposed to contain.”

Further, it is held that unless the dying declaration is in

question and answer form it is very difficult to know to what

extent  the  answers  have  been  suggested  by  questions  put.

What is  necessary is that the exact statement made by the

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deceased should be available to the court.  It is also said that

if the doctor happened to be present at the time of recording of

the dying declaration and he had heard the statement made

by  the  deceased,  he  would  ordinarily  endorse  that  the

statement  had  been  made  to  his  hearing  and  had  been

recorded  in  his  presence.   The  endorsement  as  made  is

indicative of the position that a statement had been recorded

and the same was being attested by the doctor.  

29] In the present case, these basic principles are ignored by

DW-2 at the time of recording of the alleged dying declaration

of the deceased.  As noticed above, the doctor has not made

any endorsement on the dying declaration to state that it was

recorded in his presence and attested by him.  The mother of

the deceased refused to put her thumb-impression on the said

document.  Thus, the judgment cited above cannot strength

the defence of A-1 and A-3 that dying declaration Ext. D/4

had been recorded by   DW-2 by observing the principles laid

down in the abovesaid case.  

30] The prosecution in support of the charge of dowry death

has produced and relied upon the testimony of PW-5 Parasmal

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– father, PW-6 Bhanvri – mother and PW-8 Mahender Kumar –

‘Mama’ [mother’s brother] of the deceased.  Before we proceed

to deal with and consider the evidence of the prosecution on

the question of dowry death, we may consider the ratio of the

law laid down in the cases relied upon before us.

31] In Pawan Kumar and Others Vs. State of Haryana [[1998]

3 SCC 309] this Court held that the ingredient necessary for

the application of Section 304 B are : [a] when the death of a

woman is caused by any burns or bodily injury, or [b] occurs

otherwise  than  under  normal  circumstances  [c]  and  the

aforesaid  two  facts  spring  within  7  years  of  girl’s  marriage

[d] and soon before her death, she was subjected to cruelty or

harassment by her husband or his relative,  [e]  this is in

connection with the demand of dowry.  

32] In  Hira  Lal  and  Others  Vs.  State  [Govt.  of  NCT],  Delhi

[[2003]  8  SCC  80],  this  Court  reiterated  that  the  essential

ingredients  to  attract  application  under  Section  304  B  are

that: [i] the death of a woman should be caused by burns or

bodily injury or otherwise than under a normal circumstance

[ii] such a death should have occurred within seven years of

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her marriage, [iii] she must have been subjected to cruelty or

harassment by her husband or any relative of her husband,

[iv] such cruelty or harassment should be for or in connection

with demand of dowry, and [v] such cruelty or harassment is

shown to have been meted out to the woman soon before her

death.  Further it is said that the presumption under Section

113-B of  Evidence  Act,  1872 is  a presumption of  law.  On

proof of the essential mentioned therein, it becomes obligatory

on the court to raise a presumption that the accused caused

the  dowry  death.   The  essentials  required  to  be  proved  for

raising the said presumption are that [i] the question before

the court  must  be  whether  the  accused  has committed  the

dowry death of the woman, [ii]  the woman was subjected to

cruelty  or  harassment  by  her  husband  or  his  relatives,  [iii]

such cruelty or harassment was for or in connection with any

demand for dowry, and [iv] such cruelty or harassment was

soon before her death.

33] Again,  in  the  case  of  Kamesh  Panjiyar  alias  Kamlesh

Panjiyar Vs.  State of  Bihar [[2005]  2 SCC 388],  Ram Badan

Sharma Vs. State of Bihar with Surya Kant Sharma Vs. State of

29

Bihar [[2006] 10 SCC 115], Trimukh Maroti Kirkan Vs. State of

Maharashtra [[2006]  10 SCC 681],  Kailash Vs.  State  of  M.P.

[[2006] 12 SCC 667] and Appasaheb and Another Vs. State of

Maharashtra [[2007]  9  SCC 721],  this  Court  reiterated  and

reasserted  the  settled  principles  laid  down in Hiralal’s  case

[supra].

34] In  the  light  of  the  above-settled  proposition  of  law,

learned counsel  for A-1 and A-3 urged that the prosecution

has miserably failed to prove that “soon before her death”, the

deceased  was subjected  to cruelty  or harassment “for  or  in

connection with the demand of dowry”.

35] In  order  to  appreciate  this  contention,  we  have  made

independent scrutiny of the evidence led on record to find out

whether the trial court’s order of conviction of A-1 and A-3 as

confirmed  by  the  High  Court  can  be  sustained  or  not.   In

support of the charge of dowry death levelled against A-1 and

A-3,  the  prosecution  has  examined  and  relied  upon  the

testimony of PW-5 and PW-8.   It  is not in dispute that the

death of Smt. Laxmi was caused by burn injuries within seven

years of her marriage.  The evidence of PW-5 proved that at

30

the time of marriage of Smt. Laxmi with A-1, he gave 20 tolas

of gold and other dowry articles to A-1, A-3 and other family

members.   For about  one year after  marriage,  his daughter

lived  happy  married  life  in  her  parents-in-law’s  house.

Thereafter, whenever Smt. Laxmi used to go to the house of

her parents or whenever PW-5 had visited her in-law’s house

for  inviting  her  to  parent’s  house,  Smt.  Laxmi  used  to

complain that A-1, A-3 and other family members had mal-

treated and harassed her for not bringing adequate dowry.  He

brought Smt. Laxmi to his house when she was to deliver a

child and at that time A-1 and A-3 demanded Rs. 50,000/-

from  him  as  loan  for  running  their  business.   He  paid

Rs. 50,000/-  to them.  Smt.  Laxmi stayed at his house for

about 3-4 months when she was blessed with a son and after

some  period  Smt.  Laxmi  was  sent  to  her  parents-in-law’s

house.

36] It is the evidence of PW-5 that after about 10 days prior

to the fateful incident, he went to village Silason to take his

daughter,  but  A-1,  A-3  and  other  family  members  [the

acquitted  accused]  had  refused  to  send  her  unless  their

31

demand of dowry was not fulfilled by him.  A-1, A-3 and other

accused told him that Rs. 50,000/- borrowed as a loan should

be adjusted and treated as dowry money.  He did not agree to

the  proposal  of  the  accused.   On  this  count,  the  accused

started ill-treating and harassing his daughter.  The evidence

of this witness finds complete corroboration from the evidence

of   PW-6 and PW-8 on this count.  It is further evidence of

PW-5 that about two months prior to the incident Smt. Laxmi

had visited his house, when A-4 came to his house to take

Smt. Laxmi back to their house but he did not allow her to go

with him because  it  was not advisable  to send her with an

infant child in the late hours of the evening.  Later on at about

9.00 p.m. or 10.00 p.m., three accused namely A-3, A-4, A-7

and one  Shaitan  Singh came to  his  house  and banged  the

door of his house and on hearing the sound of banging of the

door, he and his wife PW-6 opened the door.  The abovesaid

persons started quarreling with him and impressed upon him

to adjust  the amount of Rs.50,000/- as dowry money.  This

incident took place in the presence of PW-3 Taga and PW-7

Narainchand.

32

37] PW-3 Taga deposed that about two months prior to the

death of Smt. Laxmi, he saw A-3, A-4 and A-7 alongwith one

Shaitan  Singh  coming  out  of  the  house  of  PW-5  at  about

9.00 p.m. or 10.00 p.m. and at that point of time, they were

quarreling  with  PW-5  and  his  wife  PW-6  over  some  money

transaction.  PW-7 Narainchand though turned hostile to the

prosecution,  yet  he  admitted  that  A-3,  A-4  and  A-7  had  a

quarrel  with  PW-5  on  some  money  matter.   PW-6  Smt.

Bhanvri  fully corroborates  the testimony of  PW-3 and PW-5

her husband on this point.  

38] PW-8  Mahender  Kumar  deposed  that  on  that  day  he

alongwith PW-5 and PW-10 Pratap Singh, visited the house of

the accused persons, they threatened PW-5 that if he would

make demand of returning a sum of Rs. 50,000/- paid by him

as loan to A-1 and A-3, he would face dire consequences.  All

the  accused  said  that  an amount  of  Rs.  50,000/-  shall  be

adjusted against the demand of dowry money.  Thus, relying

upon the evidence of PW-5 and PW-8, the trial court and the

High Court came to the conclusion that the prosecution has

proved beyond reasonable doubt that Smt. Laxmi was being

33

constantly  harassed  and  tortured  by  A-1  and  A-3  for  the

demand of dowry and a sum of Rs.50,000/- paid to them as

loan  amount  was  also  adjusted  by  them  as  dowry  money.

PW-5,  PW-6  and  PW-8  have  been  subjected  to  searching

cross-examination by the  defence,  but nothing tangible  material

has been extracted from their  evidence to create  any shadow of

doubt that they are not reliable and truthful witnesses.   

39] Having  regard  to  the  entire  evidence  discussed  above  and

having carefully and closely considered the judgments of the trial

court and the High Court, it appears that the view taken by both

the courts was reasonable and plausible.  We find no infirmity or

perversity in the findings recorded by the learned Judges of  the

High Court to interfere with the well-reasoned judgment.

40] No other point has been raised by the appellants.  We, thus,

find no merit and substance in any of the submissions made on

behalf of the appellants.   

41] In the result, for the above-stated reasons, there is no merit in

these  appeals  and  these  are,  accordingly,  dismissed.   Both  the

appellants are stated to be on bail.  Their bail bonds are cancelled

and  they  are  directed  to  surrender  forthwith  to  serve  out  the

remaining sentence.

........................................J.

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                                                          (Lokeshwar Singh Panta)

........................................J.                                                            (B. Sudershan Reddy) New Delhi, April 17, 2009.

35